The opinion of the court was delivered by: Hillman, District Judge
This case concerns the determination of which entity or person is liable to pay for a multi-million dollar state court jury verdict in favor of a plaintiff who sued the County of Camden, New Jersey for injuries he sustained when he drove off the road and into a guardrail owned and maintained by the County. Presently before the Court is the motion of intervening plaintiff The Insurance Company of the State of Pennsylvania ("ICSOP") for partial summary judgment in its favor against Camden County. For the reasons expressed below, ICSOP's motion will be denied without prejudice.
The following background facts were contained in the Court's prior Opinion addressing several other motions, and will be restated here for reference. On December 23, 2004, Nicholas Anderson was driving on Raritan Avenue in Waterford, New Jersey when he drove off the road and hit a guardrail. Anderson sustained serious injuries, including an amputated leg and nearly amputated arm. On December 20, 2006, Anderson filed suit in New Jersey state court against the County of Camden (the "County"), which owned and maintained the road and guardrail. Anderson claimed that the County's negligent maintenance of the road and guardrail were the proximate cause of his injuries. The case went to trial, and on October 17, 2008, the jury returned a $31 million verdict against the County.*fn1
On October 20, 2008, State National Insurance Company ("State National") filed a declaratory judgment action in this Court against the County, seeking a declaration that it does not owe coverage to the County for the Anderson lawsuit under an excess liability insurance contract.*fn2 State National contends that the County's delay in notifying it of the lawsuit, its repeated representation that the case was within the County's $300,000 self-insured retention, its errors in investigating and defending the case, and its revaluation of the case four days into trial, breached the insurance contract's notice provision and the adequate investigation and defense condition to coverage. In its amended complaint, State National also contends that Donna Whiteside, County counsel who handled the Anderson case, committed legal malpractice by not properly defending the County and State National's interests.
State National's declaratory judgment action has spawned numerous counterclaims, third-party and fourth-party complaints, and an intervening plaintiff complaint.*fn3 Currently before the Court is the motion of ICSOP for partial summary judgment against the County. ICSOP filed an intervening third-party complaint against State National, the County, Whiteside, and Scibal Associates.*fn4 With regard to the County, ICSOP provided an excess liability policy, effective July 1, 2004 through July 1, 2005, with limits of liability of $5 million for each occurrence and in the aggregate. According to ICSOP, the ICSOP policy was not to be implicated until the County's $300,000 self-insured retention and the $10 million first-level excess liability insurance policy limits provided by State National were met. In its third-party complaint, ICSOP seeks a declaration that the County breached the notice provision in the ICSOP insurance policy, and it therefore is not obligated to pay the $5 million policy limit. Specifically, ICSOP claims that the County's failure to notify ICSOP of the Anderson lawsuit until seven weeks after the jury verdict--three years after the filing of the lawsuit and four years after the accident--violates the policy's requirement to notify ICSOP "as soon as practicable of any accident or occurrence which may result in any claim or suit" under the policy. Because the County breached the notice requirement, ICSOP contends that it suffered appreciable prejudice by being unable to participate in the underlying lawsuit, including conducting its own investigation, communicating with State National regarding its obligations as first-level excess insurer, and participating in any settlement negotiations. Accordingly, ICSOP seeks judgment in its favor as a matter of law that the County violated the insurance policy and ICSOP owes no coverage under the policy.
The County argues that summary judgment is not proper at this time because the case is in the early stages of discovery and numerous issues of material fact exist. More specifically, the County argues that issues of fact exist as to the County's claims against Scibal and State National regarding their reporting obligations. Without the development of facts to flush out the details of Scibal's and State National's conduct during the pendency of the Anderson claim and lawsuit, the County cannot properly defend itself against ICSOP's claims. Further, issues remain concerning ICSOP's obligations to communicate with the County, Scibal and State National as its position of excess insurer for the County. Correspondingly, the County contends that there is evidence regarding an ICSOP-initiated communication to State National regarding another case, and the County should be able to investigate ICSOP's protocol with regard to communicating with State National about policy-implicating issues. The County argues that all of these issues, and most likely others that will arise during discovery, are relevant to whether ICSOP received notice prior to December 4, 2008 and whether ICSOP was truly prejudiced. Ultimately, the County argues that ICSOP (and State National) cannot disclaim coverage where it was the communication breakdown between them, and not any actions of the County, which proximately caused any appreciable prejudice. Because the issue of communication, and thereby the issue of prejudice, is still unresolved the County contends, summary judgment in ICSOP's favor is improper at this time.
ICSOP counters that no amount of further discovery will refute what is already on the record: (1) the County, State National and Scibal have all admitted that none of them communicated with ICSOP regarding the Anderson lawsuit until December 4, 2008; (2) State National cannot identify, produce or describe any documents relating to any communications between State National and ICSOP in connection with the Anderson claim; and (3) Scibal cannot provide any evidence demonstrating that it communicated with ICSOP prior to December 4, 2008 regarding the Anderson claim. These undisputed facts, coupled with no duty on ICSOP's part to "discover" by its own volition whether a policy-implicating claim exists, as well as the insurance policy's requirement that the County, and not some other third party, notify ICSOP of a coverage-implicating claim, all demonstrate that the Court may properly enter summary judgment in its favor.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.
B. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable ...